Retroactivity — the Path to Fairness

June 2011 marks the 40th anniversary of President Richard Nixon's declaration of a "war on drugs" — a war that has cost roughly a trillion dollars, has produced little to no effect on the supply of or demand for drugs in the United States, and has contributed to making America the world's largest incarcerator. Throughout the month, check back daily for posts about the drug war, its victims and what needs to be done to restore fairness and create effective policy.

Considering the unequivocal failure of the war on drugs, it is critical that we use its 40th anniversary as an opportunity to reevaluate our country's drug policy.

An example of not only identifying a flaw in the our criminal justice system but making the effort to remedy this flaw is the Fair Sentencing Act (FSA), which was passed by Congress and signed into law by President Obama last year. The FSA represents a decade-long, bipartisan effort to reduce the racial disparities caused by draconian crack cocaine sentencing laws and to restore confidence in the criminal justice system — particularly in communities of color.

In order to implement the FSA, the United States Sentencing Commission (the independent agency responsible for setting sentencing policies for the federal courts) has restructured the federal sentencing guidelines to decrease the disparity between mandatory minimum sentences for certain quantities of crack and powder cocaine and to eliminate mandatory minimum sentences for possession of small amounts of crack cocaine.

The commission has now turned its attention to the issue of whether this new sentencing structure should be applied retroactively to individuals sentenced under the old law and held a public hearing on June 1, 2011 to examine the issue. The ACLU's very own Senior Legislative Counsel, Jesselyn McCurdy, testified at the hearing and urged the commission to apply the new guidelines retroactively in order to fully realizing the FSA's intent of "restor[ing] fairness to Federal cocaine sentencing." In her testimony, Jesselyn explained, "The underlying concerns with racial equality and proportionality that motivated Congress's two significant changes to crack cocaine sentences…apply with equal force to old sentences as to new ones."

By applying the new sentencing structure retroactively, the Sentencing Commission would right a terrible injustice and give approximately 12,040 individuals who were sentenced under the previous sentencing regime the opportunity to have their sentences reduced. With the 40th anniversary of the war on drugs upon us, now is the perfect time for the Sentencing Commission to take a key step in promoting fairness in our criminal justice system.

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